The Rise of Virtual Mediation

The ultimate goal of any longshore claim is resolution. One option that has a lot of advantages for both employers and claimants is mediation, which allows all parties agree on the final outcome. In the middle of a global pandemic, virtual mediations are on the rise.
In this episode, we discuss the benefits and pitfalls of virtual mediations, and the possibility of growing in popularity even after the country re-opens for business. 

Featuring:

• Dave Widener, director of claims advisory services, The American Equity Underwriters
• Brian McElreath, partner, Lueder, Larkin & Hunter

Longshore Insider is a production of The American Equity Underwriters, Inc. Through webcasts, podcasts and blogs, we cover safety, claims, operations and more, all to help waterfront employers run and grow their business while controlling costs.

Transcript

David Widener: 

So, Brian, let's talk about mediation a bit at this time. Obviously, people aren't able to sit across the table from each other in person at this time, which is going to make it more challenging. And having been in mediation with you, I know it's a strong suit of yours, and I know that it's something you're passionate about and something you're really good at. But, can you tell us, what do you feel are some of the benefits and also the pitfalls to the virtual mediations that we're seeing these days?

Brian McElreath:

As you mentioned, I love mediation. I think it gives everybody a little skin in the game and it gives everybody a chance to craft a potential remedy that works better for everyone. You get to cut with a scalpel rather than cut with a machete.  We are seeing a lot of virtual mediations right now. Some of the good things, they seem to move quicker because there's less posturing. There's less of the back and forth and there's less time for the "My claimant needs you in the room for X amount of times." They feel like they're getting their face time because unfortunately, nobody's in the room. We're all just interacting like you and I are here.

So, there's less posturing. They move quicker. It's more down to brass tacks, and it's, can you get to a number? And claimants and claimants councils have been, by and large, willing to be pretty reasonable because people want to be cash-heavy during times of uncertainty. And so, it gives us a good chance at times to get a pretty reasonable resolution of the claim. And it gives them a chance to give themselves some certainty during an uncertain time. So, it's the thing that we all love about mediation. It's a win-win for everyone.

Some of the pitfalls that I'm seeing are not so much in the money; getting to the money seems to be easier. I don't know that it's because of less social interaction; I think it's more so because people are just not posturing as much because we're not in a room. So, I can't really get your posturing anyway, because you're however far away from me. So, the money hasn't been as big of a deal. The money you can either get or you can't, but it's the details that pop up, as you know from your experience, at the end of mediation. Eight or nine times out of 10, there's something that comes up. The claimant wants this. The claimant wants that. The claimant's wife needs this as part of the deal.

Usually, if everybody is there, you can either do it or you can't. If you can't do it, you get everybody in the room, you say, "Are we're really going to let this tangential thing that doesn't affect the money blow up our deal?" And the answer is always no. But, if you're all remote, for some reason, and you don't have skin in the game and nobody's signing any document and there aren't settlement documents in front of you that you've already signed, you don't feel committed... these little things tend to have the ability to create much more chaos than they typically do in person because there's not that chance for a "Come to Jesus" moment... where you get everybody in the room and kind of say, "What in the world are you thinking? Are you really going to walk away from X amount of dollars over Y? That doesn't put any more dollars in your pocket." That's been the main drawback of these types of mediations.

David Widener:

That's interesting. I've really thought about just... the negative aspects are glaring to me, I guess. As a mediator, you need it in person. You really want it in person. I hated doing them over the phone. I would not do them over the phone. And I did not like doing them over video because you like to see and hear and touch and feel and see body language and expressions. And just like you said, is the claimant's spouse going to be there? Is there a way to build rapport with them, because as a mediator, rapport is everything. You want rapport with both sides and it's much harder to get it. We've got a great rapport. It's because we know each other and we work with each other and all. But, if you were somebody that I didn't know, it would not be as comfortable and it wouldn't be as easy to do and to ask questions, because it's so hard to get that rapport virtually.

I'm glad you brought up those positive aspects of really being able to get down to the money quicker and having less posturing because it's not as effective as walking into another room and slamming the door or if you just mute your video or whatever. That's really interesting.

Do you see this virtual mediation field growing after the country is reopened and we're back to business as normal?

Brian McElreath:

I think there's probably a place for it in the toolbox. I echo your sentiments. One, because I've had great success riding your coattails this far. So, I'm not going to get off at this point. But no, I echo your sentiments in that -- the half dozen or six or eight cases that I've virtually mediated during this time, I've been lucky that I've deposed all those people in person. So, I've had somewhat of that rapport with them. Not that I... either a rapport or they've passed the smell test, or they failed the smell test, but I know whatever they've done. It gets markedly harder if you've either not deposed that person or you deposed them virtually, and now you're trying to mediate virtually as well, because you've got no kind of North star to figure out where they are. So, I think that gets markedly harder.

I think there's a place for it, but does it ever become more than maybe 10% of mediations? I can't see that, because even though mediation may be expensive to have somebody there for a day and maybe they fly in or they drive in, it seems expensive when you pay the invoice. But if you look at it, what I try to look at it is in terms of TTD checks.

So, if you look at a mediator's invoice in terms of saved TTD checks, it's usually no more than two or three TTD checks. And I guarantee you, you're saving way more than two or three TTD checks by mediating that claim. And I think the virtual mediation, even though you are extremely gregarious and as good looking as I've ever seen you right here, it just strips a lot of your ability to interact with me, with the claimant, with whomever. And I think it just takes a lot of the things that make you so great, or whoever is filling your shoe as the mediator. I think it takes a lot of those tools out of the mediators kit to be able to interact with that claimant. And you can always say, "Well, I've tried cases for 20 years," or, "I've been a district director for here and I've seen 500 of cases like this," but it doesn't carry the same gravitas if you're not sitting across from someone, I think, and it makes everybody's job harder. Does it make it impossible? No. Is it better than nothing? Absolutely. Does it replace in-person contact? I don't think so.

David Widener:

Great points, Brian. And it's really very similar to medical treatment at this time. You were seeing more opportunities for virtual medical care and were seeing the benefits of it. But, nothing takes away the in-person. So, I agree. It's going to be another tool in our toolbox and it's great that we have this opportunity to use it now. For those cases where it's going to work in the future, people are maybe going to be more in tune with trying it out and not be scared. It might give us some more opportunities to mediate cases that we may not have had the chance to before because of geography or whatever limitations we might have.

Thanks for your time, Brian. Appreciate it.

Brian McElreath:

Thanks for having me.